Paul Gordon's blog

A Baseless Attack Against Garland On ACA Cases

When you have a Supreme Court nominee as well respected across the political and ideological spectrum as Merrick Garland, it’s no wonder that far right groups’ attacks against him make so little sense. Their “he hates the Second Amendment” attack last week was so illogical that it just made them look foolish. A new attack relating to religious liberty and the Affordable Care Act is equally baseless.

As with the Second Amendment example, the new attack is not based at all on any substantive ruling by Judge Merrick – not a written dissent, nor a majority opinion he authored or joined, nor a concurrence he penned. Instead, his critics are reading into his votes on whether certain three-panel decisions should be reconsidered by the entire D.C. Circuit in what is called an en banc review.

The first involved a D.C. Circuit panel decision called Priests For Life v. HHS, which is currently one of the many cases consolidated into Zubik v. Burwell, which will be argued before the Supreme Court later this week. The case concerns the ability of religiously affiliated nonprofits to opt out of the requirement to provide their employees certain contraception health insurance coverage without a co-pay. The law allows an accommodation so the employees can get the coverage without their employers having to contract, arrange, or pay for it. Instead, the employers simply tell the insurer or the federal government of their objection, at which point the insurer must offer the coverage separately to employees who want it. But some religious nonprofits assert that even this accommodation violates their religious liberty. A unanimous three-judge panel on the D.C. Circuit (which did not include Garland) upheld the law as not violating the Religious Freedom Restoration Act (RFRA). Hardly an outlier, the same legal conclusion has been reached by the 2nd Circuit, the 3rd Circuit, the 5th Circuit, the 6th Circuit, the 7th Circuit, the 10th Circuit, and the 11th Circuit. Last fall, the 8th Circuit reached the opposite conclusion, creating a circuit split that will be resolved by the Supreme Court.

In any event, Life Site News slams Judge Garland for voting against having the entire D.C. Circuit rehear the Priests for Life case. A vote for or against en banc review, absent an accompanying opinion, does not necessarily tell you anything about why the judge voted that way. In fact, several of the judges wrote or joined lengthy opinions explaining why they were for or against an en banc review. Chief Judge Garland joined none of them. Neither did George W. Bush nominee Thomas Griffith or Clinton nominee David Tatel, both of whom voted along with Chief Judge Garland not to rehear the case. The majority of the court voted against en banc review, so we don’t know how Garland would have voted on the merits of the case.

There could be any number of reasons not to want to review a panel decision; perhaps you agree with it; perhaps you think the issue is not important enough to merit that unusual step; perhaps you think a different case would be a better vehicle for addressing the legal issues; perhaps you’re concerned about the court’s workload; perhaps you know that numerous other circuits are addressing the exact same question and that  regardless of whether your court reconsiders the panel decision — the issue will be resolved by the Supreme Court, so that an en banc review would be a pointless waste of time and resources.

Indeed, that last scenario is what happened in the second ACA case that Life Site News attacks Judge Garland for. In that case, Halbig v. Burwell, a D.C. Circuit panel struck down the ACA’s subsidies structure in response to a legal attack widely recognized as purely politically motivated and legally weak (to be charitable) effort to destroy the ACA. In September 2014, the full D.C. Circuit voted without noted dissent to rehear the case, with no judge writing separately to explain their reasoning. The parties submitted detailed briefs and replies, in preparation for scheduled oral arguments in December. But then the Supreme Court accepted a case from the 4th Circuit raising the same issue, King v. Burwell, leading the D.C. Circuit to cancel its own planned oral arguments as a waste of time. So we don’t know how Chief Judge Garland would have voted on the merits of the case. (The conservative Roberts Court rejected the challenge in a 6-3 vote.)

Perhaps Chief Judge Garland, seeing how much effort went into an ultimately unnecessary en banc proceeding in the ACA subsidies case, didn’t want to repeat that scenario in the ACA contraception coverage case, knowing that the Supreme Court would likely be the ultimate arbiter of the legal issue.

The point is, we don’t know. We can’t know. Chief Judge Garland’s votes on whether to reconsider panel opinions simply don’t tell us anything about his views on the merits of the case, unless he writes or joins an opinion explaining his reasoning, which he did not do in these cases.

On SCOTUS Obstruction, Republicans Are Citing A 'Precedent' That Doesn't Exist

The following is an excerpt from a post on the People For blog on the Republican attempt to block any nominee President Obama chooses to fill the Supreme Court vacancy left by the passing of Justice Antonin Scalia:

Just as the Constitution and principle are not on the GOP’s side, neither are the facts. For instance, Ohio Sen. Rob Portman has said that “it's been nearly 80 years since any president was permitted to immediately fill a vacancy that arose in a presidential election year.” His constituents could be forgiven for inferring that the situation we now face is common, and that nomination and confirmation of Scalia’s replacement this year would go against historical norms.

However, the current situation is anything but common. The fortunate reality is that it is extremely rare for a Supreme Court justice to die in office. In fact, since 1950, this is only the fourth time a sitting justice has passed away, and this is the only time it has happened in a presidential election year:

1. Chief Justice Fred Vinson – died in 1953

2. Justice Robert Jackson – died in 1954

3. Chief Justice William Rehnquist – died in 2005

4. Justice Antonin Scalia – died in 2016

Thankfully, this is an extremely unusual situation. Republicans cannot cite precedent for an incumbent president under these circumstances to abstain from carrying out his constitutional duties and force Americans to wait a year or more for the next president to fill a sudden, unexpected vacancy on the nation’s highest court, simply because it was a presidential election year when a justice died.

Justices who retire often time their announcements in time for a replacement to be nominated and confirmed by the beginning of the next Supreme Court term. That is why most of the current justices were able to take their seats in time for the traditional First Monday in October, ensuring a full complement of nine justices. As an alternative way to protect the institution, Sandra Day O’Connor agreed to remain on the Court until her replacement could be confirmed. So even though Justice Alito was confirmed in January 2006, the middle of the term, the nation’s highest court was not forced to operate short-staffed. In ways such as these, retiring justices have sought to protect the integrity of the Court by ensuring it be able to operate at full capacity.

Unfortunately, despite Justice Scalia’s devotion to the Court he served on for three decades, he did not have the opportunity to protect it from having to operate short-staffed. And yet many Republicans are vowing to keep the Court hobbled for as long as possible.

Ginsburg Calls Out The Roberts Court's Empowering The Powerful

The Supreme Court issued a ruling today in another of its series of arbitration cases. Yet again, the Court upheld the ability of a powerful corporation to force consumers to agree to arbitration and sign away their right to engage in class action should the company violate their legal rights. Class actions are a vital mechanism to hold large businesses accountable. We’ve been writing about this trend for the past several years in cases like AT&T v. Concepcion and American Express v. Italian Colors Restaurant.

Unlike the other cases, today's ruling in DIRECTV v. Imburgia was not 5-4 in the predictable lineup. Instead, it was 6-3, with Justice Breyer writing the opinion, joined by Justices Kagan, Scalia, Alito, Kennedy, and Chief Justice Roberts. Justice Ginsburg (joined by Justice Sotomayor) dissented, while Justice Thomas had a separate dissent.

Ginsburg’s dissent opened up with clear description of how the Roberts Court has empowered corporations and weakened consumers:

It has become routine, in a large part due to this Court’s decisions, for powerful economic enterprises to write into their form contracts with consumers and employees no-class-action arbitration clauses. … Acknowledging the precedent so far set by the Court, I would take no further step to disarm consumers, leaving them without effective access to justice.

Americans have long been able to count on strong consumer protection laws to protect them for being victimized by predatory corporations. Those laws, including the right to class actions, have been essential in letting ordinary people stand as equals to giant corporations and hold those businesses accountable. Ginsburg is correct to say that the line of 5-4 arbitration cases has left us “disarmed,” because giant corporations are increasingly empowered to change the relationship between buyer and seller into one between predator and prey. We are, indeed, disarmed and without effective access to justice … despite laws designed to protect us. In closing, Ginsburg wrote that the Court is:

further degrading the rights of consumers and further insulating already powerful economic entities from liability for unlawful acts.

We deserve better from our nation’s Supreme Court.

SCOTUS Will Hear Latest Contraception Coverage Refusal Cases

The Supreme Court today announced that it will hear several cases involving the accommodation for religious nonprofits seeking to opt out of the Affordable Care Act’s contraception coverage requirement.  This is not a surprise; as People For the American Way Foundation wrote in its Supreme Court 2015-2016 Term Preview:

Under the accommodation, the employers simply tell the insurer or the federal government of their objection, at which point the insurer must offer the coverage separately to employees who want it. This way, the employees can get the coverage without their employers having to contract, arrange, or pay for it.  But some religious nonprofits assert that even the accommodation violates their religious liberty under the Religious Freedom Restoration Act (RFRA).  Under RFRA, no federal law imposing a substantial burden on religious exercise can be sustained unless it is the least restrictive means of achieving a compelling government purpose.

The list of circuit courts that have roundly rejected this argument is long:  The DC Circuit, the Second Circuit, Third Circuit, the Fifth Circuit, the Sixth Circuit, the Seventh Circuit, and the Tenth Circuit.  But in September 2015, the Eighth Circuit ruled in favor of the nonprofits and found the accommodation violated RFRA.  Now that there is a circuit split, it seems likely that the Supreme Court will take up the issue via the appeals from one or more of these circuit decisions.

The premise of those challenging the accommodation is a severe distortion of RFRA and of the very concept of religious liberty set forth by the Court’s hard-right conservatives in the 5-4 ruling in Hobby Lobby.  That law was passed with overwhelming bipartisan support in 1993 as a means to protect the free exercise of religion.  But conservative ideologues have sought to transform RFRA from a shield into a sword, one that they can use to violate the rights of third parties.  The right wing’s enthusiastic embrace of Kentucky county clerk Kim Davis shows just how far they want to extend the reasoning of Hobby Lobby.

Here, the conservatives argue that filling out a form so that insurance companies can know about their legal obligations to provide certain coverage is a substantial burden on the exercise of their religion.  That strained reasoning is a cynical use of religion to deprive women of needed healthcare, an effort to force women employees to live by their employers’ religious strictures rather than their own.  But what the Supreme Court said about the First Amendment in a 1985 case called Estate of Thornton v. Caldor is equally true of RFRA:

The First Amendment . . . gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities. [quoting from a lower court opinion by Judge Learned Hand]

Justice Kennedy, who voted with the Hobby Lobby majority, is likely to be the deciding vote in this case.  His concurrence in Hobby Lobby hinted that he might not go as far as his fellow conservatives in granting people the latitude to use RFRA to deprive others of their rights:

Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion.  Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.  In these cases [involving for-profit employers] the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here [the accommodation for religious non-profits].

Given the circuit split on the accommodation for religious nonprofits, the Supreme Court had little choice but to take this issue on.  They do have a choice, however, in how they rule.  Hopefully, a majority of justices will take the first step in restoring RFRA to the law it was intended to be.

How Conservative Justices Are Allowing Corporations To Bypass The Courts

If you ever think that courts don’t matter, ask yourself this: Why are major corporations and arch-conservative judges going to such lengths to prevent you from having your day in court when someone has violated your legal rights?

The New York Times has an in-depth three-part series of reports on arbitration, the system by which ordinary people are increasingly being coerced into surrendering their right to the protections provided by the American judicial system.

Agreements to resolve disputes by arbitration are increasingly becoming a standard part of the all-or-nothing contracts that enormous corporations force individuals to sign as a condition of doing business with them. With private arbitration, you surrender your right to a courtroom with a neutral judge and a wide variety of substantive and procedural protections for all parties.

Instead, the company picks a private arbitrator whose living depends on getting cases from corporate interests. The protections of the court system are cast aside. And you can’t have class action lawsuits, which are often the only way to hold wrongdoers accountable when they harm large numbers of individuals relatively small amounts, so it is often not worthwhile for a wronged party to pursue arbitration.

Contracts have existed for centuries. In theory, they are negotiated by two people or businesses in a process of give-and-take, where both parties fully understand what they are agreeing to. But as anyone who has cable TV or a cell phone can tell you, most contracts we sign are handed to us “as is,” take it or leave it.

If you don’t agree to the terms imposed by some enormous corporation with millions of customers, the cost to you (life without a phone) is a lot more than the cost to the company (the loss of one of millions of customers). With vastly unequal bargaining power, the consumer has little choice but to agree. And, in fact, most people sign consumer contracts or click the “I agree” box online with little to no knowledge or understanding of the agreement.

As the Times reports:

By inserting individual arbitration clauses into a soaring number of consumer and employment contracts, companies like American Express devised a way to circumvent the courts and bar people from joining together in class-action lawsuits, realistically the only tool citizens have to fight illegal or deceitful business practices.

Over the last few years, it has become increasingly difficult to apply for a credit card, use a cellphone, get cable or Internet service, or shop online without agreeing to private arbitration. The same applies to getting a job, renting a car or placing a relative in a nursing home.

By banning class actions, companies have essentially disabled consumer challenges to practices like predatory lending, wage theft and discrimination, court records show.

“This is among the most profound shifts in our legal history,” William G. Young, a federal judge in Boston who was appointed by President Ronald Reagan, said in an interview. “Ominously, business has a good chance of opting out of the legal system altogether and misbehaving without reproach.”

How did we reach a point where individuals can be routinely victimized by large corporations and denied access to the courts to vindicate their legal rights?

To a great extent, the blame can be laid at the feet of five people: The conservative majority of the Supreme Court. Their devastating 5-4 rulings like those eviscerating the Voting Rights Act or allowing billionaires and special interests to spend unlimited money in politics are well known. Less well known are 5-4 decisions in arbitration cases. Particularly notorious are AT&T v. Concepcion, where the conservatives ruled that giant corporations can use arbitration agreements to undermine state consumer protection laws across the country, and American Express v. Italian Colors Restaurant, where the conservatives empowered monopolists to use arbitration agreements to bypass federal antitrust laws.

As if this weren’t bad enough, arbitration is hardly the only weapon corporate interests are using to block their victims from vindicating their rights in court.

In fact, just today, the Supreme Court is hearing oral arguments in Spokeo v. Robins, where corporate interests claim that their victims can’t sue in federal court if their “only” injury is that a right created by Congress was violated.

Last month, the Court heard oral arguments in Campbell-Ewald Company v. Gomez, where a large company argued for the power to terminate a class action suit against it early on by quickly offering a settlement to the lead plaintiff representing the class.

Fair and just courts are vitally important in providing equal justice under the law to those who would otherwise be powerless against the enormous entities who have so much more power and resources. So it is no surprise that those powerful interests are so dedicated to blocking ordinary people from having their day in court.

Reposted from People For the American Way Foundation.

Far Right SCOTUS Isn't Extreme Enough For GOP Presidential Hopefuls

Last night’s Republican presidential debate made clear just how extreme the party has gotten when it comes to the Supreme Court … which means danger to the entire country should one of them have the power to nominate the next one, two, or three Justices.

For instance, Jeb! Bush praised Chief Justice John Roberts,  but suggested that his own Court nominees would have longer records of far-right jurisprudence than Roberts did when he was first nominated by George W. Bush in 2005:

John Roberts has made some really good decisions, for sure, but he did not have a proven, extensive record that would have made the clarity the important thing, and that’s what we need to do.  ... And, I think he is doing a good job.  But, the simple fact is that going forward, what we need to do is to have someone that has a long standing set of rulings that consistently makes it clear that he is a focused, exclusively on upholding the Constitution of the United States so they won’t try to use the bench as a means to which legislate.

Jeb! revealed quite a lot there.  Roberts provided the fifth vote in 5-4 rulings wrecking Americans’ ability to limit money in politics, gutting the Voting Rights Act, giving for-profit corporations religious liberty rights, elevating religious offense as a significant burden on religious exercise, upholding a late term abortion ban, weakening longstanding laws against job discrimination … the list goes on.  And Jeb! thinks Roberts is “doing a good job,” even if his own Justices would be more conservative.

Ted Cruz, on the other hand, angrily focused on the very few times when Roberts did not collaborate with the Republican Party’s efforts to destroy Obamacare.  Cruz blasted John Roberts as insufficiently conservative:

I’ve known John Roberts for 20 years, he’s amazingly talented lawyer, but, yes, it was a mistake when he was appointed to the Supreme Court. He’s a good enough lawyer that he knows in these Obamacare cases he changed the statute, he changed the law in order to force that failed law on millions of Americans for a political outcome.

And, you know, we’re frustrated as conservatives. We keep winning elections, and then we don’t get the outcome we want.

Mike Huckabee made clear what type of Justice he would nominate when the moderator asked if he would apply a litmus test to potential nominees:

You better believe I will … Number one, I’d ask do you think that the unborn child is a human being or is it just a blob of tissue? I’d want to know the answer to that. I’d want to know do you believe in the First Amendment, do you believe that religious liberty is the fundamental liberty around which all the other freedoms of this country are based? And I’d want to know do you really believe in the Second Amendment, do you believe that we have an individual right to bear arms to protect ourselves and our family and to protect our country? And do you believe in the Fifth and the 14th Amendment? Do you believe that a person, before they’re deprived of life and liberty, should in fact have due process and equal protection under the law? Because if you do, you’re going to do more than defund Planned Parenthood

So Huckabee Justices would help right-wing extremists accomplish their longtime dream of eliminating abortion rights altogether.  They would also change U.S. law in keeping with the current conservative project to make it easier for them to disobey laws that offend them religiously, even when it deprives other people of their rights.

The current Supreme Court has done so much damage to our basic rights and liberties, yet it is not conservative enough for Republicans seeking to be the next president.

Cross-posted from People For the American Way's blog.

Conservatives See 2016 As Key To A More Conservative SCOTUS

Four of the nine Supreme Court Justices will be in their 80s during the first term of whoever is elected president next year, meaning he or she could usher in an enormous shift in the Court’s makeup.  The Court issues enormously consequential rulings on numerous issues affecting everyone across the country – LGBT equality, money in politics, workers’ rights, religious liberty, workplace discrimination, abortion rights, and many others.  With the current Court so often divided 5-4, usually tilting toward far-right conservatives, it’s clear that the Supreme Court is perhaps the most important issue in the 2016 presidential election.

You certainly don’t need to persuade conservatives.  In fact, according to press reports, the far-right Judicial Crisis Network is launching a new website and ad campaign to pressure GOP presidential hopefuls ever rightward on the issue of Supreme Court nominations.  A reported in The Hill, the group blasts the arch-conservative Chief Justice John Roberts and very conservative Anthony Kennedy as insufficiently conservative.

“Demand justices with a proven record of upholding the constitution. We can’t afford more surprises,” a narrator says as the video shows the faces of Roberts, Kennedy and former Justice David Souter, who retired in 2009.

The three justices are “examples of bad GOP appointments,” the Judicial Crisis Network said in a statement announcing the advertisements.



[JCN] says it made the $200,000 television and digital ad buys ahead of the Republican presidential debates to get candidates on the record about their approach to Supreme Court picks. The next Republican debate is Wednesday.

The television and digital ads are set to run in Iowa, New Hampshire and Washington, D.C. starting Monday, the group said.

Roberts and Kennedy … not conservative enough?  Along with Scalia, Thomas, and Alito, they formed the five-person majority that gutted the heart of the Voting Rights Act (Shelby County), opened the floodgates to corporate money in politics (Citizens United), twisted religious liberty into a tool to deprive others of their legal rights (Hobby Lobby), and regularly misinterpret and severely undermine our nation’s anti-discrimination laws (Ledbetter, for a start).  True, Justice Kennedy authored the Court’s key opinions recognizing the constitutional rights and basic humanity of LGBT people, but he is no liberal.

If conservative activists succeed in electing a conservative president who wants to drive the currently far-right Supreme Court even farther rightward, the repercussions will be enormous.

But imagine instead if Americans elect a president who wants to restore a high court that recognizes and protects our constitutional and statutory rights to liberty, equality, and democracy … Again, the repercussions for people across the entire country would be enormous.

There is one thing where we agree with the JCN.  As their ad says:

On the most important issues, the Supreme Court decides.  The next president could appoint a new majority to last a generation.

Keep that in mind between now and Election Day.  You can be assured that conservatives will.

Cross-posted from People For the American Way's blog.

Federal Court Rejects Another Bogus 'Religious Liberty' Claim From Religious Right

The Tenth Circuit today released its opinion in Little Sisters of the Poor v. Burwell, becoming the latest federal appellate court to reject the claim that the Obama Administration’s contraception coverage accommodation for religious nonprofits violates their religious liberty.

This is the latest effort by the far right to redefine “religious liberty” and the Religious Freedom Restoration Act (RFRA) to use as a sword to deprive third parties of their legal rights.  Under RFRA, no federal law imposing a substantial burden on religious exercise can be sustained unless it is the least restrictive means of achieving a compelling government purpose.

The Tenth Circuit now joins the DC Circuit, the Third Circuit, the Fifth Circuit, and the Seventh Circuit in rejecting this attack on the accommodation for religious nonprofits.  Notably, all these decisions came after the Supreme Court rewrote the Religious Freedom Restoration Act (RFRA) in the Hobby Lobby case, giving certain for-profit corporations and their owners greater latitude to exempt themselves from laws they find personally offensive.  (The Sixth Circuit also reached the same conclusion, but it is still in the process of reconsidering it to make sure it is consistent with Hobby Lobby.)

The Obama Administration created a process whereby religious nonprofits can exempt themselves from the federal requirement that its employees have certain contraception healthcare coverage: Fill out a form (or now, just send a letter) and let the Department of Health and Human Services know that you won’t be providing it and say who your insurance carrier is, so that officials can inform them of their legal requirements to provide the coverage.  The religious right has called even this accommodation a violation of the religious liberty rights of nonprofits, saying it makes them complicit in the provision of contraception that violates their religious beliefs.

The Tenth Circuit concluded that the accommodation does not substantially burden Plaintiffs’ religious exercise and therefore does not violate RFRA.  The court stated:

The accommodation relieves Plaintiffs from complying with the Mandate and guarantees they will not have to provide, pay for, or facilitate contraceptive coverage.  Plaintiffs do not “trigger” or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles plan participants and beneficiaries to coverage.  Although Plaintiffs allege the administrative tasks required to opt out of the Mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity.

The court does not question the sincerity of the plaintiffs’ assertion that filling out the form violates their religious beliefs.  But it also pointed out that under RFRA, whether a burden is substantial is a legal question that is up to the court, not the plaintiff, to answer:

If plaintiffs could assert and establish that a burden is “substantial” without any possibility of judicial scrutiny, the word “substantial” would become wholly devoid of independent meaning.  Furthermore, accepting any burden alleged by Plaintiffs as “substantial” would improperly conflate the determination that a religious belief is sincerely held with the determination that a law or policy substantially burdens religious exercise.  (internal citation removed)

Whether it’s women’s ability to access their legal right to healthcare or same-sex couples’ ability to exercise their constitutional right to marry, imagine the chaos if people could simply exempt themselves from – and severely weaken – laws they disapprove of by citing their personal religious beliefs.

But that is a recipe for a Balkanized society, not a healthy pluralistic democracy.  Citing a previous case, the Tenth Circuit states: “Law accommodates religion; it cannot wholly exempt religion from the reach of the law.”

This post originally appeared on the blog of People For the American Way.

Justice Ginsburg Tackles Idea That Marriage Definition Has Existed For Millennia

One of the words being bandied about at this morning's oral arguments in the marriage cases was "millennia." One of the anti-equality side's main talking points is that equality proponents are asking the Justices to "redefine marriage," as if marriage has been static in nature for time immemorial. Justice Kennedy raised this issue early in oral arguments. As reported in the Washington Post:

10:06 a.m.: Justice Anthony M. Kennedy, who is believed to be the deciding vote in this case, quickly jumped in with a question about the long-standing view of marriage as between two members of the opposite sex. "The word that keeps coming back to me is ‘millennia,' " he said.

Same-sex marriage has been legal in the United States for only about a decade, since Massachusetts legalized it in 2006, Kennedy said. "I don't even know how to count the decimals," he said. "This definition has been with us for millennia."

Perhaps no one is better qualified to tackle this aspect of the case than Justice Ginsburg. As live-blogged by SCOTUSBlog:

One seemingly striking moment came when Justice Ginsburg spoke of how it was recent changes to the institution of marriage that made it appropriate for gay and lesbian couples -- in particular, it becoming an egalitarian institution rather than one dominated by the male partners who determined where and how the couple would live.

Indeed, the idea of marriage as the voluntary union of two lawful equals is hardly one that goes back millennia, or even to our nation's founding. For much of American history, women who got married actually lost their civil identities as individuals, being seen in the eyes of the law only as the wives of their husbands, who had all the legal rights. In the 19th century, it was considered a major reform to allow a woman to keep her own property in her own name after she married, rather than having it automatically transfer to her husband. A more recent reform is that a wife is not automatically considered to have given consent to her husband for sexual intercourse.

Marriage as it is practiced in our country is hardly millennia old. Much of what defined marriage in U.S. history would today be struck down as violating the rights of women under the 14th Amendment. When a New York court in the 1980s struck down that state's rape exemption that allowed men to rape their wives, the judge opened his opinion with quotation from John Stuart Mill's 1869 essay The Subjection of Women: "Marriage is the only actual bondage known to our law. There remain no legal slaves, except the mistress of every house."

But the court that struck down the spousal rape exemption more than a century after that was written was not engaged in an illegitimate "redefinition" of marriage. It was simply enforcing the 14th Amendment, as the Supreme Court is being asked to do today.

This post originally appeared on the blog of People For the American Way.

Alabama Marriage Mess Shows Dangers Of Distorted 'Religious Liberty' Claims

Across Alabama, local judges are openly defying a federal judicial order to grant marriage licenses to same-sex couples. The New York Times reported yesterday that 44 of the state's 67 counties were not granting licenses. The state is a checkerboard, where gay and lesbian Alabamans are locked out of full citizenship across vast swaths of the state based on the whims of local officials.

As many observers have pointed out, this week's events make Americans recall the state's historic resistance to federal court orders striking down segregation. But they show us an image of the future, as well ... or at least the future as the Far Right would have it.

Emboldened by the Supreme Court's distortion of religious liberty in the Hobby Lobby case, some state legislatures are considering bills that would allow government officials to decline to perform marriages that offend them religiously. A number of states are also considering legislation to let people exempt themselves from anti-discrimination and other laws if compliance would offend them religiously. While misleadingly framed as protecting religious liberty, these bills are really intended to allow discrimination and to let conservatives impose their religious beliefs on others.

So what would America look like if we allowed such massive holes to be poked in laws that are supposed to protect everyone? What if lesbian and gay couples were legally treated as outsiders in their home communities, had fewer legal rights than anyone else in those communities, and had to travel anywhere from another neighborhood to another county to find a bakery willing to make a cake for them, a hotel willing to rent them a room for the night, or an employer willing to grant them spousal employment benefits? What if a woman's ability to find adequate healthcare depended on finding an employer and a pharmacist with compatible religious beliefs? What if people's basic rights varied depending on where they were, and upon the prevailing religious beliefs of people in the area? What would such a religiously balkanized nation look like?

It would look a lot like Alabama does today. And it would be ugly.

For decades, the Far Right has fought tooth and nail to impose their religious beliefs through government fiat. They have fought to prevent gays from marrying, to prevent women from exercising reproductive choice, to have public schools indoctrinate other people's children with their own religious beliefs, ... the list goes on. And when they fail at changing the laws to match their religion, they seek exemptions from those laws in the name of "religious liberty."

As People For the American Way Senior Fellow Peter Montgomery has written in his most recent report, that isn't what religious liberty is about. And it isn't a vision of America that is true to our founding principles.

This piece originally appeared in the Huffington Post.

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